CAAFlog » Military Justice Legislation

This story in The Hill alerted me to the “Protecting the Rights of IndiViduals Against Technological Exploitation Act” (PRIVATE Act), H.R.2052, which passed the House with no nay votes on May 24, 2017, and has been referred to the Senate Armed Services Committee. A separate (but identical) bill was also introduced in the Senate (S.1296).

The bill proposes a new Article 117a of the UCMJ to prohibit the “wrongful broadcast or distribution of intimate visual images.” The text of the proposed article – which seems to avoid the problems I identified in the new Article 1168, U.S. Navy Regulations – is after the jump.

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Our #1 Military Justice Story of 2016 is the Military Justice Act of 2016, passed as Division E of the National Defense Authorization Act for Fiscal Year 2017 and signed into law by President Obama on December 23, 2016.

A bookmarked PDF of the MJA is available here.

The Act was the product of the Military Justice Review Group, an internal DoD working group created by the Secretary of Defense to conduct a comprehensive review of the UCMJ. As an internal group the MJRG’s meetings and deliberations were closed to the public, and there was little subsequent public debate about the group’s 1,302 page report and legislative proposal. The House and Senate adopted the MJRG’s legislative proposal in differing degrees, and the final legislation was worked out in conference committee. It’s not everything the DoD wanted, but it’s pretty close, and it’s the most significant changes to the UCMJ since the Military Justice Act of 1983.

The changes won’t take effect until the President establishes an effective date that need only be sometime before January 1, 2019 (1st day of the 1st month two years after enactment). Yet while Congress gave the President up to two years to make the Act effective, it only allowed one year for revision of the Manual for Courts-Martial (perhaps in recognition of the fact that the White House has been painfully slow to act on draft executive orders forwarded by the Joint Service Committee).

Of course we’ll analyze the MJA in 2017, and we’ll keep reporting on developments in military justice for the eleventh year. Stay tuned.

The FY17 NDAA (link) – which includes major changes to the UCMJ (noted here) – has passed Congress and was sent to the President for signature on Wednesday.

The long awaited report of the conference committee considering the National Defense Authorization Act for Fiscal Year 2017 was just released. It is available here: https://rules.house.gov/conference-report/s-2943

The conference version of the NDAA includes a great many significant changes to the Uniform Code of Military Justice. In particular, the legislation adopts many – but not all – of the changes proposed by the Military Justice Review Group.

Some significant notes:

• The conference version does not eliminate members sentencing in non-capital cases. Instead, § 5182 amends Article 25 to give the accused the option to elect sentencing by members (when trial was before members) after the findings are announced.

• § 5164 of the conference version amends Article 20 to state that “a summary court-martial is a non-criminal forum. A finding of guilty at a summary court-martial does not constitute a criminal conviction.”

• § 5205 modifies a staff judge advocate’s pretrial advice to require only a probable cause determination rather than the current conclusion that “the specification is warranted by the evidence.”

• § 5330 modifies Article 66 to require automatic review by the courts of criminal appeals only in cases that include death, dismissal, a dishonorable or bad-conduct discharge, or confinement for two years or more. In cases involving confinement for more than six months or more (but less than two years) an accused may petition for review.

Edited to add: • § 5330 also preserves the requirement that a CCA “may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved.”

• § 5301 modifies Article 56 to allow the prosecution to appeal a sentence on the grounds that “(A) the sentence violates the law; or (B) the sentence is plainly unreasonable.”

• § 5301 modifies Article 56 requires a sentence adjudged by a military judge alone to be segmented (confinement and fine only) by offense. Where sentencing is by members, the court-martial will continue to adjudge a single sentence for all offenses.

As the Military Justice Act of 2015 works its way through Congress, a Legal Memorandum from the Heritage Foundation considers the proposed changes in the context of history, contemporary practice, and the press to modernize:

Paul Larkin and Charles “Cully” Stimson, The 2015 Report of the Military Justice Review Group: Reasonable Next Steps in the Ongoing Professionalization of the Military Justice System

[Update:  this event has been postponed due to weather issues.  We will update the post and provide a link to the new flyer when it is available]  On January 28, 2016, from 6:00 to 8:00 pm, there will be a panel discussion of DoD’s proposed military justice legislation resulting, in part, from the work of the Military Justice Review Group (MJRG).  The panel is co-sponsored by the American Bar Association’s Standing Committee on Armed Forces Law, in cooperation with the ABA’s Standing Committee on Law and National Security, and the Judge Advocates Association.  See details here.

I have not heard any postponement due to weather. [Update:  Well that’s not true now.]

Location:  Founders Room, Offices of Dentons US LLP, 1900 K Street, Washington DC, 20006

Moderator: The Honorable James Baker, former Chief Judge, U.S. Court of Appeals for the Armed Forces

Panelists:

  • The Honorable Andrew Effron, former Director of the MJRG
  • Col. William N. Pigott, Chair, DoD Joint Service Committee on Military Justice
  • LtCol Julie Huygen, U.S. Air Force representative, Joint Service Committee on Military Justice
  • COL Walt Hudson, U.S. Army representative, Joint Service Committee on Military Justice
  • CAPT Warren A. Record, U.S. Navy representative, Joint Service Committee on Military Justice

There is no charge for this event, but the Committee asks that you please email Susan.Koz@americanbar.org to RSVP.

From the Code Committee, here:

This year’s meeting will be held at the Courthouse of the United States Court of Appeals for the Armed Forces, 450 E Street, NW, Washington, DC 20442-0001, at 10:00 a.m. on Tuesday, March 1, 2016. The agenda for this meeting will include consideration of proposed changes to the Uniform Code of Military Justice and the Manual for Courts-Martial, United States, and other matters relating to the operation of the Uniform Code of Military Justice throughout the Armed Forces.

 

The National Defense Authorization Act for Fiscal Year 2016 (S.1356) was signed into law by the President last week.

A prior version of the legislation (H.R.1735) was vetoed late last month (discussed here).

The bill enacted last week contains 15 military justice provisions. They are identical to the provisions that were in the vetoed version of the bill. I discussed those provisions in this post.

That’s the word from this Poltico report:

IT’S VETO DAY AT THE WHITE HOUSE: The White House has taken any drama out of whether President Barack Obama will veto the National Defense Authorization Act, as he has vowed to do: It has announced in his daily schedule that he’ll veto the bill this afternoon.

The fiscal 2016 NDAA will be just the fifth veto of Obama’s seven-year presidency and will spark a Republican offensive against him for politicizing the military in a budget fight. The House has already set up a veto override vote for Nov. 5, although enough Democrats opposed the bill earlier this month to sustain the veto.

I discussed the military justice provisions in the FY16 NDAA in this post.

Update: Veto. Washington Post report here.

The National Defense Authorization Act for Fiscal Year 2016, with its 15 military justice provisions (discussed here), passed Congress this week.

However, according to numerous news reports (such as: this from Defense News, this from Politico, this from Roll Call, and this from the Washington Post), the President will veto the bill. According to these (and other) reports, the veto threat is limited to disagreement over fiscal and Guantanamo Bay provisions in the NDAA, and has nothing to do with the military justice provisions.

Back in June, in this post, I discussed the military justice provisions in the House and Senate versions of the National Defense Authorization Act for Fiscal Year 2016. The separate bills went to a conference committee. The Committee’s report was just published and is available here.

The text of the NDAA approved by the Committee contains numerous military justice provisions. I’ve excerpted them into a separate document available here. The provisions are:

Enforcement of certain crime victim rights by the Court of Criminal Appeals (sec. 531)

Department of Defense civilian employee access to Special Victims’Counsel (sec. 532)

Authority of Special Victims’ Counsel to provide legal consultation and assistance in connection with various government proceedings (sec. 533)

Timely notification to victims of sex-related offenses of the availability of assistance from Special Victims’ Counsel (sec. 534)

Additional improvements to Special Victims’ Counsel program (sec.535)

Enhancement of confidentiality of restricted reporting of sexual assault in the military (sec. 536)

Modification of deadline for establishment of Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (sec. 537)

Improved Department of Defense prevention and response to sexual assaults in which the victim is a male member of the Armed Forces (sec. 538)

Preventing retaliation against members of the Armed Forces who report or intervene on behalf of the victim of an alleged sexrelated offense (sec. 539)

Sexual assault prevention and response training for administrators and instructors of Senior Reserve Officers’ Training Corps (sec. 540)

Retention of case notes in investigations of sex-related offenses involving members of the Army, Navy, Air Force, or Marine Corps (sec. 541)

Comptroller General of the United States reports on prevention and response to sexual assault by the Army National Guard and the Army Reserve (sec. 542)

Improved implementation of changes to Uniform Code of Military Justice (sec. 543)

Modification of Rule 104 of the Rules for Courts-Martial to establish certain prohibitions concerning evaluations of Special Victims’Counsel (sec. 544)

Modification of Rule 304 of the Military Rules of Evidence relating to the corroboration of a confession or admission (sec. 545)

The bill is H.R.1735. You can follow it here.

Both the Senate and the House have passed versions of the National Defense Authorization Act for Fiscal Year 2016 that contain numerous military justice provisions. The Senate was last to act (passing its version on June 18), and the House has requested a conference to resolve the differences.

I’ve excerpted the military justice sections of both bills into separate documents. The House version is available here. The Senate version is available here.

Notable sections include:

  • Section 546 of the Senate version, changing the corroboration rule for confessions to require only corroboration of the trustworthiness of the confession rather than corroboration of the actual matters confessed. The corroboration rule (and its requirement for corroboration of facts rather than truthiness) was at issue this term in United States v. Adams, 74 M.J. 137 (C.A.A.F. Apr. 27, 2015) (CAAFlog case page).
  • Section 557 of the House version, requiring establishment of a database to track all service members – current and former – who have been convicted of a sex offense at a court-martial, for the purpose of ensuring that they are properly registered as a sex offender.
  • Section 549 of the Senate version, permitting an alleged victim to file an interlocutory appeal of certain issues, requiring a CCA to conduct a de novo review of those issues, and requiring the CCA to issue its decision within 72 hours of the filing of the petition.
  • Section 551 of the Senate version, granting an alleged victim a right to Special Victims’ Counsel during questioning by military criminal investigators, but specifically stating that a violation of the right shall not be a basis to suppress any statement given by an alleged victim.
  • Sections 546 and 1159 of the House version, which would require that a victim be allowed to participate in nonjudicial punishment and administrative separation proceedings.
  • Section 548 of the House version, adding a mandatory minimum 2 year period of confinement to the mandatory minimum dishonorable discharge for certain sex offenses.
  • Section 556 of the House version, requiring public access to court-martial documents at all stages of the proceedings.
  • Various provisions in both bills expanding the scope of the role of Special Victims’ Counsel.

In a December 3, 2014 memo, here, SecDef required the service secretaries to provide the findings of the 2014 “Department of Defense Report to the President of the United States on Sexual Assault Prevention and Response” to servicemembers, stating:

To encourage greater victim reporting and demonstrate Department and Service progress, the Secretaries of the Military Departments will provide the findings in the [20 14 “Department of Defense Report to the President of the United States on Sexual Assault Prevention and Response”] to all Service members in an interactive manner. Please report your execution plan to the Under Secretary of Defense for Personnel and Readiness by January 30, 2015.

The Report is available here, under the Tab for “Report to the President.”  The findings of the Report and the guidance are now being rolled out within DoN.  Here is at least one of the presentations that will be making the rounds within DoN and a related guidance memo, here.  Here are a few of MilJus highlights from the presentation:

• Commander Accountability – Leaders must cultivate or maintain command climates where improper discrimination of any kind, destructive behaviors and other inappropriate conduct is not tolerated and professionalism is the norm.

• Military Justice System Reforms – Reforms have also expanded legal representation and protections for victims’ interest, rights and privacy.

• Victims’ Legal Counsel – Provides victims a lawyer (not the prosecutor) to represent their specific interests.

The related memo emphasizes the Victim’s Legal Counsel program:

New, groundbreaking legal resource that provides advice and assistance to sexual assault victims in understanding and participating in the military justice system. VLCs, upon request of their clients, advocate on behalf of victims at pre‐trial motions hearings and Article 32 investigations, and are present at courts-martial to answer questions and prepare victims for their testimony.

Other services have similar training being released?

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A Joint Base Lewis-McCord soldier testified in his court-martial yesterday that he killed a fellow soldier in self-defense in the nearby town of Lakewood.  Private Jeremiah Hill testified that he stabbed Spc. Tevin Geike after Geike pulled out a knife and cut Hill when he tried to take it from him.  Hill’s companions on the night of the murder also testified but distanced themselves from Hill’s actions.  Hill faces life in prison without the possibility of parole if he is convicted of the murder.  Full report from the Tacoma News Tribune here.

The FY 2016 NDAA markup continues the trend of military justice “fixes.”  Here is the HASC Subcommittee on Military Personnel Markup containing a variety of provisions focused on dealing with issues related to sexual assault.  The current markup includes sections addressing retaliation against victims and witnesses to sexual assault and improved response to sexual assault of male members of the armed forces.  The markup schedule is here.

Congress revised Article 32 in the FY14 NDAA, eliminating the longstanding practice of a thorough pretrial investigation of charges prior to referral to a general court-martial, and replacing it with a more limited preliminary hearing. I analyzed the new statute shortly after it was enacted, in this post. The statute was slightly modified in the FY15 NDAA, making it effective for all hearings conducted on or after December 26, 2014 (discussed here).

Even though the new statute is in effect, the Manual for Courts-Martial has not been revised (though the JSC has proposed revisions, discussed here and here). In particular, R.C.M. 405 details the procedure for an Article 32 pretrial investigation, and it has not been modified to reflect the new statutory framework of a preliminary hearing. The Manual is promulgated under the President’s rulemaking authority contained in Article 36, and it is controlling for all of the services.

Nevertheless, two service secretaries have issued implementation guidance for Article 32 preliminary hearings. The Navy was first, with ALNAV 086/14 (“New Article 32, UCMJ, Preliminary Hearing Procedures”), issued on December 22, 2104. The Army recently followed suit, with Army Directive 2015-09 (“Implementation of Section 1702 of the National Defense Authorization Act for Fiscal Year 2014-Article 32, Uniform Code of Military Justice Preliminary Hearing”), issued on February 24, 2015. Update: A reader passed along the AFLOA/JAJM Article 32 Preliminary Hearing Officer’s Guide dated December 23, 2014, which contains similar guidance for the Air Force (though not from the Secretarial level).

These issuances generally conform to the new statutory language of Article 32, and they are in some ways inconsistent with the existing R.C.M. 405. For example, both of the issuances allow a Preliminary Hearing Officer to consider “other evidence, in addition to or in lieu of witness testimony. . . ” ¶ 3.(i)(3)(B), ALNAV 086/14; ¶ 10.c.(2), Encl. 1, ARMY DIR 2015-09. However, R.C.M. 405(g)(4) limits the ability to consider alternatives to testimony, and R.C.M. 405(g)(5) limits the ability to consider alternatives to evidence.

I think that the authority of a Service Secretary to issue substantive rules that are contrary to the Rules for Courts-Martial is dubious, and I note that “if an accused is deprived of a substantial pretrial right on timely objection, he is entitled to judicial enforcement of his right, without regard to whether such enforcement will benefit him at the trial.” United States v. Murray, 25 M.J. 445, 447 (C.M.A. 1988) (quoting United States v. Ragan, 33 C.M.R. 331, 336 (C.M.A. 1963) (quoting United States v. Mickel, 26 C.M.R. 104, 107 (C.M.A. 1958))). It will be interesting to see how the appellate courts address any objections to the ALNAV and the ARMY DIR.